National Organization for Marriage president Brian Brown joined Steve Deace on Friday to discuss the marriage equality cases being argued this week at the Supreme Court. If the Court rules broadly in favor of equality, Brown said, NOM would turn its focus toward advocating for a Federal Marriage Amendment banning marriage equality throughout the country. Responding to conservatives who are concerned about the Federal Marriage Amendment’s infringement on states’ rights, Brown invoked Abraham Lincoln: “We need a solution in this country, we cannot be, as Lincoln said, half slave, half free. We can’t have a country on key moral questions where we’re just, where we don’t have a solution.”
I think we’re going to win these cases. But say the worst happens and we lose in a broad way – that means that the Court somehow does a Roe, a Roe v. Wade, on marriage and says that all these state constitutional amendments are overturned, gay marriage is now a constitutional right – well, we’re going to press forward on a Federal Marriage Amendment. We’ve always supported a Federal Marriage Amendment, and there’s a lot of misconceptions about it. Some people try and argue, ‘Well, this is against federalism.’ No, our founders gave us a system where we can amend the Constitution. We shouldn’t have to do this, we shouldn’t have to worry about activist judges, you know, making up out of thin air a constitutional right that obviously none of our founders found there and no one found there until quite recently. But if we do, for us, the Federal Marriage Amendment is a way that people can stand up and say, ‘Enough is enough.’ We need a solution in this country, we cannot be, as Lincoln said, half slave, half free. We can’t have a country on key moral questions where we’re just, where we don’t have a solution. And if the Court forces a solution, the way we’ll amend that is through the Federal Marriage Amendment.
WASHINGTON – Today People For the American Way Foundation released a new report outlining the history and arguments surrounding the two marriage cases before the Supreme Court this term: Hollingsworth v. Perry, challenging California’s Proposition 8, and U.S. v. Windsor, challenging Section 3 of the anti-gay Defense of Marriage Act (DOMA).
The report, Equal Protection or ‘Social Tradition:’ The Supreme Court’s Test in the Marriage Cases, details the legal histories of the current Supreme Court cases as well as past cases addressing the issue of marriage discrimination. PFAW Foundation Senior Fellow Jamie Raskin, the report's author, takes apart conservative arguments against marriage equality, including those based on the goal of legislating social morality. Released just before the Supreme Court hears oral argument, the report provides timely, in-depth analysis and historical background on the central issues of the cases.
“The only real question is what role the Court will play in the historical process of vindicating the rights of the people,” the report notes. “Will it constitutionalize discriminatory ‘traditions,’ as it did in Bowers v. Harwick, or will it defend the rights and liberties of the people, as it did in Lawrence v. Texas?”
In an interview on The Janet Mefferd Show yesterday, Eagle Forum founder Phyllis Schlafly attacked Sen. Rob Portman’s newfound support for legalizing same-sex marriage, calling his announcement “dumb” and a “stupid statement.” Schlafly, who unlike Portman has maintained her opposition to marriage equality even after learning that she has a gay son, said that Ohio voters may “feel sorry for him” because “maybe he was pressured by his son to do this.”
She insisted that the Defense of Marriage Act (DOMA) “does not proscribe a national rule against gay rights” and protects states’ rights.
However, Section 3 of DOMA requires the federal government to discriminate against legally married same-sex couples. Even the American Family Association’s legal counsel admits that Section 2, which allows states to refuse to recognize same-sex unions that are legal in other states, likely violates the Constitution’s Full Faith and Credit Clause.
Mefferd: What do you make of Sen. Portman’s announcement last week?
Schlafly: I think it was a rather stupid statement that he made. He doesn’t appear to understand what DOMA is all about. His statement is not in accord with the facts and it’s inconsistent. If he stands up for states to be able to make their own decisions about marriage, DOMA allows that, we have about a half a dozen states that have made that unfortunate decision and they’re not interfered with by DOMA. I don’t understand. Portman was always advertised as one of the brightest of the Senators and he doesn’t seem to understand that the Defense of Marriage Act does not proscribe a national rule against gay rights; it doesn’t do that at all. It just says if one state adopts same-sex marriage the other states simply do not have to recognize it. What can be more states’ rights than that?
Mefferd: That shouldn’t be the way people shift positions as far as public policy is X is happening in my family therefore I’ve changed my mind completely for the entire country.
Schlafly: I agree with you and I think it’s really a dumb way to create legislation and my guess is that the Ohio voters will take care of that in the next election; I think they won’t respond to that type of an argument. They’ll feel sorry for him, maybe he was pressured by his son to do this, but I think the legislators should stand up for what the majority of people want and not decided based on personal experience.
This piece is the seventh in a series of guest blog posts on “Why It’s Time to Dump DOMA.” In the weeks leading up to the Supreme Court arguments on the anti-gay Defense of Marriage Act, we’re asking friends of PFAW to share why dumping DOMA matters to them. Be sure to check back soon for the latest post in the series.
Nine years ago, as I was preparing to leave Ohio University, I said goodbye to Adam, one of my best friends. I remember writing to him in a card that I hoped our husbands would someday get to meet. That November – November 3, 2004 to be precise – I was on the phone with him, and he was heartbroken at what for many was a difficult election (including Ohio passing a state constitutional amendment limiting marriage to the union of one man and one woman).
Fast forward to 2011, and a visit with Adam and his partner of several years, Michael. Marriage equality came up in conversation. It seemed to us to be possible but still five or ten years away.
Then came 2012. In May, President Obama affirmed his support for the freedom to marry of same-sex couples. In December, the Supreme Court agreed to hear cases challenging California’s Proposition 8 and the federal Defense of Marriage Act.
With oral arguments looming at the end of the month, Adam’s reaction to the President’s announcement rings ever more true:
THANK YOU President Obama! Those of you who know Michael and I: we have such an incredibly strong, stable, loving relationship. Opening our relationship up to marriage does nothing but STRENGTHEN the institution!
That’s exactly why we should dump DOMA.
Yes, dumping DOMA is just one step on the long road to marriage equality. But it’s an important step, and one that’s many years overdue. DOMA unconstitutionally defines marriage for all federal purpose as the union of one man and one woman. That means that legally married couples in nine states and the District of Columbia are denied the more than one thousand rights and benefits that the federal government ties to marriage. That means that these couples and families aren’t afforded the safety and security that comes along with many of those rights. That means that they are discriminated against based solely on their sexual orientation.
That means that if Adam and Michael were to legally marry, despite progress made under the Obama administration, the federal government – bound by the discrimination enshrined in law – would have no choice but to turn its back on them in most cases.
That is not right. Dump DOMA.
Jen Herrick, Senior Policy Analyst
People For the American Way
During the debate over the Shepard-Byrd Hate Crimes Prevention Act, Religious Right groups like the American Family Association warned that the law would “criminalize negative comments concerning homosexuality” and “take away our religious freedoms.”
Of course, none of that happened, but that hasn’t stopped anti-gay activists from making the exact same false claims again and hoping more people will fall for it.
Yesterday, AFA president Tim Wildmon appeared on The Janet Mefferd Show and alleged that if the Supreme Court overturned Proposition 8 and the Defense of Marriage Act (DOMA) then we will see “persecution against Christians” and restrictions on the freedom of speech.
Wildmon: You’re headed down the road of persecution against Christians who believe in the Bible as their standard for moral behavior. In Canada now they have different rules there where you can’t even criminalize the lifestyle itself or you’ll be charged with a hate crime. You know that’s the road we’re headed down if these laws, if DOMA is struck down, if Prop 8 is struck down, then you’re headed for control of speech, even if it’s religious speech.
Ironically, the AFA’s own legal counsel, Pat Vaughn, admitted that “the Defense of Marriage Act is probably unconstitutional.”
In an interview with the American Family Association’s news affiliate Instant Analysis (formerly OneNewsNow), Peter LaBarbera of Americans For Truth About Homosexuality condemned the large group of corporations that joined legal briefs asking the Supreme Court to overturn the Defense of Marriage Act (DOMA) and Proposition 8.
LaBarbera blasted the corporations for “pushing homosexuality on the American public,” calling the amicus brief “a tool of repression against Christians and people of faith who simply want their right to not support homosexuality.” He claimed that if the Supreme Court rules against Prop 8, “that will be a sad day for American freedom” and “a disaster,” as deciding who should have the freedom to marry “should be left up to citizens.”
Peter LaBarbera of Americans for Truth About Homosexuality acknowledges that corporations are at liberty to do what they want privately, such as adopting pro-homosexual policies.
“... But when you start pushing homosexuality on the American public using the government, that's another matter,” he offers. “Then it becomes a tool of repression against Christians and people of faith who simply want their right to not support homosexuality.”
According to the family advocate, the Prop. 8 case before the nation's high court is essentially the “Roe v. Wade” of the homosexual movement.
“If the court steps in and overrides the decision of the people of California not to support homosexual so-called marriage, that will be a sad day for American freedom,” he tells American Family News. “All across the nation citizens have spoken on this issue – [and] at the very least it should be left up to citizens.
“If the court imposes national homosexual marriage, that will be a disaster – and it will fuel the culture wars for decades to come.”
Of course, it is absurd to argue that a Supreme Court decision against DOMA or Prop 8 actively represses or takes away the rights of marriage equality opponents. But the Religious Right is often inconsistent in its arguments. Another AFA news item, however, explicitly rejects paying any attention to how the public feels, contradicting LaBarbera’s argument.
Sam Rohrer, a former Republican lawmaker in Pennsylvania and head of the Pennsylvania Pastors’ Network, tells the AFA that the public’s view on marriage equality doesn’t matter because judges should rule according to “moral law” established by God as “the base of the Constitution and the individual rights guaranteed by it are based on the Bible.”
The Christian Post reported on Monday that The Washington Post has published two polls that show "Americans are done with DOMA." But the Pennsylvania Pastors' Network (PPN) contends that the results are "likely skewed."
PPN president Sam Rohrer believes that polls are worth about the amount it cost to conduct them - particularly when they are financed by organizations that advocate for the destruction of marriage, including the Respect for Marriage Coalition.
"When they use polls to try to substantiate and/or to prove an acceptance of a position that has not been historically sound, I'm saying [that] is an inappropriate use of polls," Rohrer submits. "And any judge that looks to the poll as a determination of how they may or may not judge and rule on this case is to embrace moral relativism rather than moral law."
That is especially relevant now, as the U.S. Supreme Court is to hear arguments on the constitutionality of the Defense of Marriage Act next month; the resulting ruling is expected near the end of June.
The Coalition's poll results show that 83 percent of Americans, "regardless of their personal opinion on the issue," believes same-sex "marriage" will be legal nationally "in the next five to ten years." But that can only happen if the federal Defense of Marriage Act is repealed by the Supreme Court or Congress.
And a national survey conducted on behalf of the Center for American Progress (CAP) and Gay & Lesbian Advocates and Defenders (GLAD) reportedly reveals that 59 percent of registered voters "oppose" Section 3 of DOMA, which defines marriage as between one man and one woman and a spouse as someone of the opposite gender.
The PPN president asserts that the purpose of the recent polls is to influence public opinion and the courts.
"What the Pastors' Network is saying is that when making a decision, a moral decision where you're talking about an institution created by God, God doesn't need public opinion polls; so neither should a judge consider what polls may or may not be," Rohrer contends. "It's a moral decision, and moral decisions ought to be made based on what God says -- not what some poll may or may not say."
Part of the oath of office high court justices take is to support and defend the Constitution. And as Rohrer points out, the base of the Constitution and the individual rights guaranteed by it are based on the Bible -- not the popular view of the culture.
The other day, Matt Barber and Steve Crampton of Liberty Counsel were discussing the Supreme Court's decision to hear arguments on Proposition 8 later this year, when Crampton warned that any decision to strike it down would put society "on the verge of total collapse."
The two followed that up with a discussion of the related decision by the court to hear arguments over the Defense of Marriage Act, which both Barber and Crampton discussed in an equally reasonable fashion, with Barber warning that gay marriage will be the sledgehammer that crushes religious liberty in America while Crampton proclaimed that the homosexual agenda "will eradicate us and they will not stop until the homosexual totalitarian view of the world is forcefully imposed on every American":
In reading through the amicus briefs submitted by anti-gay groups to the Supreme Court, we’ve been generally impressed by the relative restraint of their legal arguments compared to their day-to-day anti-gay tirades. But not so with the two briefs submitted last week by a hodgepodge coalition of conservative groups.
Citizens United’s National Committee for Family, Faith and Prayer filed two no-holds-barred amicus briefs last week, one in defense of Prop 8 [pdf] and one in defense of DOMA [pdf]. They were joined in both by the anti-immigrant groups Declaration Alliance and English First; WorldNetDaily affiliate the Western Center for Journalism; the Institute for Constitutional Values (founded by white supremacist ally Michael Peroutka, who also argues that the solution to school violence is to abolish schools); Gun Owners Foundation (the research wing of Gun Owners of America); the extremely and occasionally comically anti-gay Public Advocate; the birther group U.S. Justice Foundation; Protect Marriage Maryland and others. Far-right Virginia Del. Bob Marshall and Sen. Dick Black joined the DOMA brief. Both are signed by Michael Boos, general counsel of Citizens United, and by Herb Titus, an attorney with a sideline as a birther advocate.
So I guess we shouldn’t be surprised that the filings contain passages like this one, in the Prop 8 brief, arguing that laws against homosexuality affirm rather than deny the humanity of gay people:
Second, while the discrimination against Blacks in America denied them their rightful status as a member of the human race vis-à-vis their white counterparts, the discrimination against homosexuals affirmed their status as full and equal members of the human race. Indeed, the very definition of the “crime against nature,” was employed to emphasize that the sexual behavior condemned was contrary to the law of human nature. Homosexual behavior, then, while unnatural did not mean that those guilty of it were any less human.
Or this one from the DOMA brief arguing that gays and lesbians have not historically faced discrimination because some criminal sodomy laws also “extended to opposite sex unnatural couplings”:
As a class, homosexuals have not been discriminated against in the way that the court of appeals has so “easily” assumed. The appellate panel below concluded that “the most telling proof of animus and discrimination is that, for many years and in many states, homosexual conduct was criminal.” Yet historically, even the crime of sodomy was not so targeted. Rather, it was defined as “carnal copulation against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with a beast.” Thus, the crime of sodomy was “known in the common law by the convertible and equivalent name  of ‘crime against nature,” the offense not only extended to opposite sex unnatural couplings, but was one of several sexual offenses that fit under the broad category of “offenses against the public health, safety, comfort and morals.” Among these sexual offenses were bigamy, adultery, fornication, lewdness and illicit cohabitation, incest, miscegenation, and seduction, all of which could be committed by persons of the opposite sex. Rather than a narrow negative purpose, these laws reflect a perceived concern for the public health, safety, comfort, and morals of certain sexual behaviors.
Or that the groups oh-so-cleverly invoke the court’s Obamacare decision to argue that the extra taxes same-sex spouses pay under DOMA are an acceptable way of “deterring certain activities”:
Additionally, this Court has consistently ruled that Congress’s power to tax is not limited to the purpose of raising revenue. Thus, this Court found that it is permissible for Congress to adopt a taxing policy for the purpose of deterring certain activities by the levying of a tax on them, as well as for the purpose of collecting revenue. Therefore, according to precedent, it is a constitutionally permissible exercise of Congress to adopt a tax policy for the purpose of nurturing traditional marriage as the ideal family structure for raising children, just as this Court has recently observed, that it is perfectly permissible for Congress to impose a tax “to encourage people to quit smoking” or “to shape decisions about whether to buy health insurance.”…It is not for the courts to second-guess whether Congress should promote a traditional family policy in the exercise of its taxing powers.
But what is truly remarkable about the Citizens United coalition’s legal arguments is their eagerness to burn all bridges and declare everything they come across unconstitutional. While the Family Research Council and Liberty Counsel, presumably trying to appeal to Justice Anthony Kennedy, hold their noses and accept Kennedy’s pro-gay rights opinions in Lawrence v. Texas and Romer v. Evans as law, Citizens United et al have no such scruples. Not only should Lawrence and Romer be overturned, this group argues, but so should Bolling v. Sharpe, the 1954 Brown v. Board companion case that desegregated the District of Columbia’s public schools. Bolling was the first decision in which the Supreme Court explicitly found an equal protection component in the Fifth Amendment’s Due Process Clause, thus setting the stage for six decades of prohibitions on discrimination by the federal government – all of which the coalition would like to see go.
But these groups don’t just go after decades of legal precedent. They also personally attack two judges who ruled against Prop 8 before it reached the Supreme Court, in particular district court judge Vaughn Walker, who is openly gay:
With the understanding of Judge Walker’s personal interest in the outcome of the case, it becomes much easier to understand his finding every fact for the plaintiffs and his willingness to impute ill will to the proponents of Proposition 8. For example, having in his personal life rejected 6,000 years of moral and religious teaching, we can see how Judge Walker could readily determine that California voters were motivated solely by “moral and religious views…that same-sex couples are different from opposite-sex couples [and] these interests do not provide a rational basis for supporting Proposition 8.” The same is true for Judge Walker’s conclusion that supporters’ motivations were: “fear,” “unarticulated dislike,” not “rational,” based on “animus toward gays and lesbians,” “irrational,” “without reason,” and “born of animus.” Petitioners were entitled to have their case heard by an impartial judge – not one who was leading a secret life engaging in behaviors which he appeared to believe were being unfairly judged and criticized by the proponents of Proposition 8.
(Citations omitted in block quotes)
Earlier this week, we looked at the slightly conflicted amicus briefs that the Family Research Council submitted to the Supreme Court ahead of its consideration of two major marriage equality cases. Today, Warren Throckmorton alerts us that the “ex-gay” group Parents and Friends of Gays and Ex-Gays (PFOX) has submitted its own brief to the Court.
The PFOX amicus brief [pdf], unsurprisingly, argues that gays and lesbians should not be a “protected class” under the law because homosexuality “is not an immutable characteristic.” As evidence, it presents the stories of four self-proclaimed “ex-gays” whose lives purportedly show that “sexual orientation can shift over time and does so for a significant number of people.”
One of the stories the brief presents is that of “Richard Cohen, M.A…an ex-gay who is now married with 3 children. He struggled for much of his life with unwanted same-sex attraction. Richard is the founder of the International Healing Foundation (IHF) and the author of Coming Out Straight, Gay Children Straight Parents, Let’s Talk About Sex, and Alfie’s Home.”
As it happens, Cohen is one of the most prominent purveyors of reparative therapy, the harmful process of trying to “cure” homosexuality that was recently banned for minors in California. And his book Alfie’s Home, cited in PFOX’s Supreme Court brief, is the most horrifically disturbing children’s book we have ever seen. We know, because we are unlucky enough to have a copy in our research library. Here is some of what the Justices have in store if they check out Cohen’s work:
Alfie’s Home was published in 1993 by Cohen’s International Healing Foundation. It starts out with a picture of the protagonist on a boat with his dad.
But it goes bad fast, going right for the right-wing myth that homosexuality is caused by childhood sexual abuse…
…and by insufficiently attentive parents:
Eventually, Alfie seeks help and takes part in the “touch therapy” advocated by Cohen…
…which leads him to “realize that I’m not gay” and start dating a woman:
You can see Cohen’s “touch therapy” in practice in this 2006 CNN interview:
He also made a cameo on the Daily Show.
For their own sakes, I hope the Justices don’t look too far into Cohen’s story. But if they do, they’ll get a revealing glimpse of the world that is trying to sink gay rights laws across the country.
The Family Research Council submitted two amicus briefs to the Supreme Court yesterday urging it to reject challenges to DOMA and to California’s Proposition 8. The briefs lay out some of the same arguments that we’ve heard many times from the FRC. But we were curious if the FRC would jettison one of its favorite talking points– the success of discriminatory measures at the ballot box –in light of last year’s resounding marriage equality victories in Maine, Maryland, Minnesota and Washington.
The answer was yes and no.
In its brief on Hollingsworth v. Perry, the Prop 8 case, the FRC goes back to the old talking point, ignoring the events of last November, to argue that “there is no ‘emerging awareness’ that the right to marry extends to same-sex couples.”
This Court has never stated or even implied that the federal right to marry extends to same-sex couples. And, with the exception of the district court’s decision below, which was affirmed on other grounds by the court of appeals, no state or federal court has held that the fundamental right to marry extends to same-sex couples. In sharp contrast to the “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” Lawrence, 539 U.S. at 572, which, in turn, was based upon an examination of “our laws and traditions in the past half century, id. at 571, “[t]he history and tradition of the last fifty years have not shown the definition of marriage to include a union of two people regardless of their sex.” If anything, the fact that thirty States have amended their constitutions to reserve marriage to opposite-sex couples strongly suggests that there is no “emerging awareness” that the right to marry extends to same-sex couples.
But when the FRC wants to argue that gays and lesbians are not a “politically powerless” group deserving protection from discrimination, they flaunt the 2012 election results and point to how close previous anti-gay votes on state ballots were. This is from the brief on U.S. v. Windsor, the DOMA case:
Any lingering doubt that gays and lesbians are able to influence public policy, particularly with respect to the issue of same-sex marriage, should have been laid to rest by the results of the last election. Three States – Maine, Maryland and Washington, by popular vote, approved laws allowing same-sex marriage, and in a fourth State – Minnesota – voters rejected an amendment to the state constitution that would have prohibited same-sex marriage. Even in States where such amendments have been approved, the margin of victory has often been narrow, in some cases barely passing (as in California in 2008 and South Dakota in 2006), indicating that homosexuals, who comprise no more than one to two percent of the population, have succeeded in enlisting many heterosexuals to support their cause for same-sex marriage. In such a dynamic social and cultural environment, the belief that homosexuals are “politically powerless in the sense that they have no ability to attract the attention of the lawmakers,” strains credulity.
So when voters reject gay rights at the ballot box, they are reflecting public opinion. But when they vote in favor of gay rights, they have been “enlisted” to the cause by powerful gay rights lobbyists.
Pacific Justice Institute president Brad Dacus warned today that if the Supreme Court overturns the Defense of Marriage Act (DOMA) then the U.S. will likely legalize polygamy and incest “as society continues to slip down that slippery slope.” While speaking to Jim Schneider of VCY America’s radio show Crosstalk, Dacus also agreed with George Will’s assessment that “quite literally, opposition to gay marriage is dying,” alleging that teachers unions and Hollywood have spearheaded the “indoctrination” of youth.
Dacus: If the Supreme Court rules that the Defense of Marriage Act is unconstitutional and that the definition of marriage as between one man and one woman is unconstitutional, then we’re basically going to have an open heyday for homosexual marriage as well as other kinds of “marriage” being introduced and being protected through this case law precedent, such as polygamy, perhaps adult incest and who knows what else will be attempted to be added on.
Schneider: This past Sunday syndicated columnist George Will appeared on ABC’s “This Week” and said that the opposition to same-sex marriage is “quite literally dying” he said because opponents tend to be older Americans. What are your thoughts on this?
Dacus: Unfortunately, I have to agree with George Will on this. The polls show and the stats show that older people are the number one supporters of traditional marriage, they are older people and they are literally dying. The people who are the biggest proponents of homosexual marriage, they’re young people, they’ve come out of our public schools, the teachers unions have been establishing this agenda and this indoctrination through our public schools for quite some time. So they’ve succeeded in this indoctrination process in many of our public schools across the country for a new way of thinking, a new perspective. Along with Hollywood, we have a whole new mindset and in fact young people are overwhelmingly, I think it is 2:1, in favor of legalization of homosexual marriage. Of course, that number could easily change to include other forms of marriage as society continues to slip down that slippery slope.
A conservative George H. W. Bush nominee on the 2nd Circuit Court of Appeals authored a strong decision today declaring section 3 of the discriminatory Defense of Marriage Act unconstitutional. Earlier this year, a federal district court judge in Connecticut, that one a Bush-43 nominee, also declared the law unconstitutional. So did a unanimous panel of the First Circuit Court of Appeals.
The case before the 2nd Circuit was that of Edith Windsor, an octogenarian in New York who lost her wife in 2009; they had been together for forty years. The New York Civil Liberties Union, which is representing Windsor, described her case in a press release this summer:
Windsor and Spyer lived together for more than four decades in Greenwich Village. Despite not being able to marry legally, they were engaged in 1967. In 1977, Spyer was diagnosed with multiple sclerosis, and Windsor helped her through her long battle with that disease. They were finally legally married in May 2007.
When Spyer died in 2009, she left all of her property to Windsor. Because they were married, Spyer's estate normally would have passed to Edie as her spouse without any estate tax at all. But because of DOMA, Windsor had to pay more than $363,000 in federal estate taxes. Payment of the federal estate tax by a surviving spouse is one of the most significant adverse impacts of DOMA since the amount owed, as was true in this case, is often quite substantial.
"Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition," said Roberta Kaplan, a partner at Paul Weiss and counsel to Windsor. "Because the District Court's ruling in her favor is entitled to an automatic stay of enforcement, Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime."
The 2nd Circuit opinion leaves no ambiguity as to the discriminatory harm done by section 3 of DOMA. Ian Millhiser at Think Progress pulls out this paragraph of the decision:
[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
That’s an unambiguous indictment of DOMA and of all laws that discriminate against gays and lesbians. Nevertheless, House Speaker John Boehner, who has now spent $1.5 million taxpayer dollars in an attempt to defend DOMA, is likely to appeal the case to the Supreme Court. But the easier option, as PFAW president Michael Keegan points out in a statement today, would be for Congress just to repeal DOMA. It’s done enough harm to millions of people like Edie Windsor, and its effects will become clearer as more and more gay and lesbian couples are allowed to marry, and find that their marriages aren’t recognized by the federal government.
The Second Circuit Court of Appeals today ruled that section 3 of the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages sanctioned by the states, is unconstitutional.
Michael Keegan, President of People For the American Way, issued the following statement:
“Every federal court that has reviewed DOMA’s section 3 has found that it violates our constitutional principles. This should be no surprise. DOMA hurts gay and lesbian married couples by denying them some of the most basic protections of marriage, and it does so for no reason but prejudice against LGBT families. Our Constitution guarantees all Americans equal protection under the law, and DOMA clearly violates that principle.
“House Speaker John Boehner has wasted nearly a million and a half taxpayer dollars on defending this indefensible law. I am confident that the Supreme Court would not let DOMA stand, but I hope that they never have to review it. Most Americans don’t want to hurt their gay and lesbian neighbors, and we’ve seen over and over again that DOMA does real harm to real people. Congress must recognize the harm that DOMA has done and repeal it before it hurts more legally married Americans.”
A People For the American Way petition calling for the repeal of DOMA has gathered over 200,000 signatures.
The ballot initiative that revoked marriage equality in California has taken a big step towards having its constitutionality determined by America’s highest court. In a long-awaited move, proponents of Prop 8 have petitioned the Supreme Court to review the Ninth Circuit’s ruling in Hollingsworth .v Perry that the ballot initiative violated the federal Equal Protection Clause. A nearly 500 page document, which can found here, lays out their rationale for urging the court to review the case.
Prop 8 Trial Tracker broke down the core of their argument:
The question presented in the case is: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” The proponents tell the Court that they should answer the “profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples.” They write that leaving the Ninth Circuit’s decision intact would have “widespread and immediate negative consequences” and would leave the impression that any “experiment” with marriage would be “irrevocable”.
The Ninth Circuit issued a very narrow ruling, avoiding the question of whether gay and lesbian couples in general have a constitutional right to marry. Instead, it based its ruling on narrow grounds unique to California, where same-sex couples were left with all the state rights of marriage but not the name. It found that taking their designation of “marriage” while leaving their rights unchanged did not serve any of the purposes put forth by its defenders. Instead, its only purpose and effect was to lessen a targeted group’s status and dignity by reclassifying their relationship and families as inferior. While the Supreme Court will be presented with the narrower question as framed by the Ninth Circuit, it is impossible to tell, if it agrees to hear the case at all, whether they will rule on this principle or more broadly on the ability of states to deny lesbians and gays the right to marry.
The Supreme Court will likely decide in early October whether or not to hear the case. Back in February, PFAW applauded the decision of the Ninth Circuit Court of Appeals in upholding the decision of the district court striking down Prop 8.
Marriage equality is just one of the many critical issues that will come before the Supreme Court when they reconvene next session. The elevation of Prop 8 to the highest level of the judicial system underscores the increasing importance of the Supreme Court and the Presidential election.
It is a difficult to imagine a more conservative Court than the one we have now, but Mitt Romney has pledged to appoint justices even further to the right then John Roberts and Samuel Alito. Romney has also enlisted far-right judge Robert Bork to advise him on judicial matters.
Visit RomneyCourt.com for more on Mitt Romney’s extreme vision for the Supreme Court.